[An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here.]

The Originalism Blog has a guest post, by David Weisberg, taking issue with the conclusion in Dennis Baron's Washington Post op-ed that newly available evidence of historical usage shows that in District of Columbia v. Heller, Justice Scalia misinterpreted the phrase keep and bear arms. That's an issue that I wrote about yesterday ("The coming corpus-based reexamination of the Second Amendment") and that I'm going to be dealing with in a series of posts over the next several weeks.

One of Weisberg's arguments concerns a linguistic issue that I'm planning to address, and I think that Weisberg is mistaken. At the risk of getting out ahead of myself, I want to respond to Weisberg briefly now, with a more detailed explanation to come.

Weisberg says that although he agrees with Baron that Scalia's opinion in Heller is wrong, he thinks that Baron has reached that conclusion for the wrong reason. "In particular," Weisberg says, "[Baron] is plainly mistaken with regard to the definition of the transitive verb 'bear,' and he also provides an unsatisfactory interpretation of the Second Amendment as a whole." I'm going to focus only on the first of those arguments:

The Oxford English Dictionary provides the following primary definition of the transitive verb “bear”: “I. To carry; with its transferred and fig. senses. 1. trans. To support the weight of (anything) whilst moving it from one place to another: to carry.” This definition, according to the OED, has been valid since before 1000 AD, and is first observed in Beowulf. Webster’s New Collegiate Dictionary (1981 ed.) provides the following primary definition of the verb “bear”: “1 a : to move while holding up and supporting”.

If a corpus linguistics analysis reveals that the phrase “bear arms” was almost always used around the time of the founding in a military context, would that change the primary meaning of the verb “bear,” which meaning has been in use since before 1000 AD? This question answers itself. Around the founding era, people in America were interested in questions of liberty, freedom from tyranny, rebellion and revolution. One would expect, during such times, that they would be talking and writing about “bearing arms” in a military context, rather than in the context of hunting or target-shooting. But the context does not change the meaning of the words, or, if it does, it was a change in meaning that apparently both the OED and Webster’s missed.

It is clear from both those definitions that it would be perfectly correct, albeit stilted and un-idiomatic, to say that people hunting rabbits bear arms. They of course are not bearing arms against rabbits in any sense, but that is not the language of the Second Amendment. Rabbit-hunters carry or support firearms while moving from place to place, so they are indeed bearing arms, unless, that is, former Justice Souter is correct and both the OED and Webster’s are incorrect regarding the meaning of the transitive verb “bear”. I’m betting against Justice Souter.

Before responding to Weisberg, I have a lexicographic observation. The OED's definition of bear is roughly 140 years old, dates back to 1888. (The OED's Second Edition, published a century later, consisted primarily of the contents of the First Edition, combined with the contents of the various supplements that had been published in the interim to add new words.) Therefore, the definition does not reflect any of the profound changes in lexicography that resulted from the introduction of computerized corpora—a development that, as it happens—took place only a few years before the publication of the OED's Second Edition. The Webster's definition Weisberg cites predated those changes, too.

Weisberg frames the issue as relating to the meaning of the verb bear, and he argues that even if "the phrase 'bear arms' was almost always used around the time of the founding in a military context," that would not "that change the primary meaning of the verb 'bear,'" which he describes as meaning carry. That argument will undoubtedly strike most people as perfectly reasonable.

But what has been revealed by corpus linguistics (particularly corpus lexicography) is that Weisberg's framing is wrong. The issue is not what bear means in isolation, it is what the phrase bear arms means. Because the meaning of a word as used in a particular context is very often affected by that context. So words are not necessarily the basic units of meaning. And it is entirely possible that in its most frequent use, bear arms was not synonymous to carry arms.

If you want to know why that is, though, I'm afraid you'll have to I get around to the post that discusses the corpus data on this issue. If you can't wait until then, you can read my article. If you don't have time for that, you can read my blog post. If you have lots of time, you can download my article and start reading the sources that it cites.

I'll leave you with another lexicographic observation. Although the OED's definition of bear is 140 years old, its definition of arm as a noun was updated in March of this year. (Wow, thanks OED!) And I'm confident that the OED's current lexicographic practices take account of what is widely known as the corpus revolution in lexicography. All of which is by way of introduction to the following, which is the OED's current definition of bear arms, in its entirety:

a. to bear arms.

(a) To serve as a soldier; to fight (for a country, cause, etc.). [After Anglo-Norman and Old French, Middle French porter armes (c1100 in this sense; French porter armes).]

I should have kept scrolling after I copied the entry for bear arms that I quoted above. Had I done so, I would have found the following entry for "right to bear arms":

(a) Heraldry. [Omitted]

(b) orig. and chiefly U.S. The right to keep or use arms (sense 2b); the right to keep or use firearms, esp. for self-defence or to protect one's community or State. The right to bear arms is codified in the Second Amendment of the United States constitution: ‘A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ This is one of the best known and most controversial parts of the constitution, and remains the subject of debate between opposing lobbyists.

1776 Constit. Common-wealth Pennsylvania 9 People have the right to bear arms for the defence of themselves and the State.

1792 E. Ryves tr. J. V. Delacroix Rev. Constit. Principal States Europe II. 551 The people have a right to bear arms; but no standing armies shall be maintained in time of peace.

1841 E. A. Theller Canada 1837–8 xix. 310 The right to bear arms, and the right of speech, is an American right.

1879 Churchman 16 Aug. 171/1 Your right to bear arms does not include the right to make a shooting-gallery of another man's private parlor.

1921 Bankers Mag. Mar. 377 The individual citizen is again demanding the right to bear arms—a right which..the Constitution of the United States declares ‘shall not be infringed’.

1980 N.Y. Times 14 Dec. nj8/1 Opposition to gun controls based on the constitutional right to bear arms.

2007 Chicago Defender 19 Sept. 3/3 We need to value our children more than we value our right to bear arms.

It seems reasonable to assume that this entry, being part of the revision that was released earlier this year, was drafted after Heller was decided, and that it therefore took account of Heller's holding in the drafting of the definition. If that assumption is correct, this entry is irrelevant for the purpose of my analysis. And if the entry wasn't influenced by Heller, only one of the seven example sentences provides any support for the language "esp. for self-defence or to protect one's community or State," and in the remaining example, bear arms is explicitly modified by the prepositional phrase for the defence of themselves and the State.

36 Comments

That argument will undoubtedly strike most people as perfectly reasonable.

Actually, I found his reasoning so muddled that it took me a minute to figure out what his actual argument was. He's basically saying, "Wouldn't the existence of a specialized subsense have changed the primary sense?" I can't for the life of me figure out why that would be true. A word like bear has all kinds of subsenses; why should we assume that this one would somehow change the primary sense?

Of course, the real problem is that his argument is simply a red herring. Instead of engaging with the question of how bear arms was used at the time, he's simply trying to throw doubt on Baron's argument by making some weird assertions about word senses. I think it's pretty telling that he doesn't actually back up that assertion—he just says "The question answers itself" and then moves on.

Oh, and the idea that context doesn't change the meaning of words is pretty laughable.

Matt_M said,

D.O. said,

But what has been revealed by corpus linguistics (particularly corpus lexicography) is that Weisberg's framing is wrong. The issue is not what bear means in isolation, it is what the phrase bear arms means. Because the meaning of a word as used in a particular context is very often affected by that context. So words are not necessarily the basic units of meaning. And it is entirely possible that in its most frequent use, bear arms was not synonymous to carry arms.

You can probably cite Chief Justice Roberts on this point from the FCC vs. AT&T (aka "We trust that AT&T will not take it personally."):

AT&T’s argument treats the term “personal privacy” as simply the sum of its two words: the privacy of a person. Under that view, the defined meaning of the noun “person,” or the asserted specialized legal meaning, takes on greater significance. But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. “Personal” in the phrase “personal privacy” conveys more than just “of a person.” It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.

It may be argued that an adjective-noun compound (or noun-noun for that matter) is not the same as verb-noun compound and that compositional semantics works better in the latter case, but this is something to be argued, not just assumed.

The Britisher said,

[(ng) I have deleted this comment, which consisted of nothing but a long quote from a magazine published in 1780, which had no relevance other than being an example of the use of the phrases bear arms and bearing arms.]

Ethan Bradford said,

Craig said,

I would argue that for the question of whether the 2nd Amendment guarantees an individual right to own guns, the relevant verb is not "bear" but "keep". The phrase is "to keep and bear Arms", after all, not just "to bear Arms". If I can own a gun, I can "keep" it, but "bearing" it would have to do with the circumstances under which I can carry it around or fire it. In the historical context of the early American republic, which had no standing army, it was clearly desirable for every man to own a well-maintained gun and be proficient in its use so as to be ready to defend the country if called upon. (How that applies to today's world is another question.)

That said, though, it seems to me (not a professional linguist) that to use "bear arms" to mean "serve in the military" or "fight in combat" is a metaphorical usage. The literal meaning clearly is "carry weapons". These phrases are to some extent interchangeable, in that while "carry a gun" and "bear arms" do not literally mean exactly the same thing, either can be used metaphorically to mean the other. To cite one modern example, in Al Stewart's song "Roads to Moscow", a Russian soldier describing his experiences defending against the German invasion during the second World War tells us, "It's been almost four years that I've carried a gun." In context, he is clearly referring to his time in the war, but it would be silly to argue from this that every time anyone says "carry a gun" they're talking about military service.

Ultimately this all comes down to a question of what the author of the 2nd amendment and those who voted for understood it to mean. Since this is a difficult question to answer with certainty, most people on both sides of the gun control issue start from their desired political outcome and argue backwards from there, using whatever arguments support their conclusion. Intellectual honesty is therefore rather hard to come by on this topic.

So the Second Amendment includes the right to be armigerous. An interesting conclusion. Perhaps we'll be seeing heraldry shows where people can trade coats of arms, after getting a background clearance.

Craig said,

You have to admit it would be very creative to argue that the 2nd amendment has nothing to do with guns but was instead intended to guarantee the people's right to heraldry.

Btw, I see I made a mistake while editing my previous comment: "while 'carry a gun' and 'bear arms' do not literally mean exactly the same thing", should been "while 'carry a gun' and 'fight in a war' do not literally mean exactly the same thing".

loonquawl said,

My post was garbled because the bigger/smaller sign i used as quotes seems to have special properties in this blog. I tried to say that the quote from Weisberg is missing some quotation marks, and is ambiguous (your words/his) as it is now.

Craig said "Since this is a difficult question to answer with certainty, most people on both sides of the gun control issue start from their desired political outcome and argue backwards from there, using whatever arguments support their conclusion. Intellectual honesty is therefore rather hard to come by on this topic". I could not agree more.

Adrian said,

Let's assume that it can be shown that "bear arms" had *always* been used in a military context, up until the time the 2nd Amendment was written. If the 2nd Amendment were written to describe a new right that had more-or-less never been talked about before, would it be unusual for the the authors to reuse an existing phrase like "bear arms" in the new context, especially if it is intended to represent the same idea in both the old and new context? Before 2A: Only soldiers bear arms. After 2A: Both soldiers and the people bear arms.

John Adamson said,

Pflaumbaum said,

If anyone's interested in going back a bit further into the history of "bear", here's a nice blog post by Piotr Gąsiorowski on PIE *bʰer- and its reduplicated forms.

For those with a bit more time, I can't recommend enough the wonderful series it's part of, starting with Greek obscenities and encompassing reduplication, Germanic wheels, cuckoos, beavers and a whole lot more.

(*Inserts obligatory "Piotr, please start blogging again*)

tk said,

Just asking.
Is the main post above [PP8] missing a couple of verbs:
"If you to know why that is, though, I'm afraid you'll have to I get around to the post that discusses the corpus data on this issue.

Rocky IV said,

The passages cited by @Rocky and @Rocky IV remind me of something I've always wondered about in connection with the second amendment, namely, why there's so much focus on the meaning of bear arms and not much on the meaning (or better, the referent) of the people. Objections to background checks and so on seem to assume that the people refers to, well, all individual citizens, whereas what it meant in the 1780s was something like the opposite of the state. Assessing the fitness of any given individual to keep and bear arms (and concluding that some individuals are actually not fit) doesn't seem inconsistent with the right of "the people" in this collective sense to do so. Is there any scholarship – legal or linguistic – on how the people should be understood?

Joel F. said,

"XXV. The property of the soil, in a free government, being one of the essential rights of the collective body of the people, it is necessary, in order to avoid future disputes, that the limits of the State should be ascertained with precision;"
-North Carolina Declaration of Rights, 1776

If it's OK to have background checks for other rights–like going on facebook (packingham v. north carolina)–then it's OK to have background checks for guns.

Brett Reynolds said,

The "primary definition" in the OED is only primary in a historical sense. That doesn't mean it's the most relevant, most common, or most important. Often it's entirely obsolete, though not in this case. The relevant sense in this case is clearly:

6. To carry about with or upon one, as material equipment or ornament.

a. To carry about with one, or wear, ensigns of office, weapons of offence or defence. to bear arms against: to be engaged in hostilities with.

John Roth said,

I was thinking about this, and began wondering about why we think "bear arms" is non-compositional. To put it in different terms, where do we draw the line between a subsidiary meaning of a word (bear in this case) and simply calling the phrase the basic semantic unit, obviating the need for that subsidiary meaning?

Sergey said,

So he seems to agree that the main point of the 2nd amendment is for the people to be armed, allowing them to overthrow an usurper government by military force? That certainly makes all the "assault weapon" bans, as well as automatic weapons bans and any kind of weapon bans unconstitutional!

rsteinmetz said,

Thinking of this in historical feudal context I believe the "right to bear arms" was generally limited to the nobility (including lower nobility like knights) and those they authorized to serve them in their armies. So that anyone "bearing arms" without that "right" or a authorization would be committing a crime.

In Japan the Samurai were at times the only ones allowed to carry weapons.

Thinking of context the full phrase needs to be understood "the right to keep and bear arms" held by "the people" removed one avenue of government oppression.

The first battle of the American Revolution was an attempt by the British to seize guns and supplies the citizens had gathered.

Vulcan With a Mullet said,

"Ultimately this all comes down to a question of what the author of the 2nd amendment and those who voted for understood it to mean. Since this is a difficult question to answer with certainty, most people on both sides of the gun control issue start from their desired political outcome and argue backwards from there, using whatever arguments support their conclusion. Intellectual honesty is therefore rather hard to come by on this topic."

Exactly what I was trying to put into words as my reply – thank you for doing it for me so well instead ;)
We aren't going to be able to get into the minds of the framers (any more than clear language can do), nor would we want to necessarily use that as a basis for our contemporary interpretation if we could.

The real question is "What are we, as the U.S.A., going to agree to make this mean TODAY?" Thus, judicial interpretation of precedent…

Marty said,

"Let's assume that it can be shown that "bear arms" had *always* been used in a military context, up until the time the 2nd Amendment was written. If the 2nd Amendment were written to describe a new right that had more-or-less never been talked about before, would it be unusual for the the authors to reuse an existing phrase like "bear arms" in the new context, especially if it is intended to represent the same idea in both the old and new context? Before 2A: Only soldiers bear arms. After 2A: Both soldiers and the people bear arms."

I would argue that they would not do that unless they had a particular desire to be misunderstood, at least not without taking the time to define their innovative use. After all judicial interpretation was the rule back then as well, and one would expect judges to interpret using the common usage, which would undo their supposed goal. So no, that argument does not make sense to me.

Craig said,

"nor would we want to necessarily use [the framers' understanding] as a basis for our contemporary interpretation"

One interesting thing about this discussion is that the fact that we're debating what "bear arms" meant 200+ years ago implies that we accept an originalist view of the Constitution, in which case, yes, we do want to use the framers' understanding as a basis for contemporary interpretation.

Joshua K. said,

If "bear arms" were interpreted to mean "to serve as a soldier," wouldn't that imply that the purpose of the 2nd Amendment was to prohibit discrimination against persons seeking to participate in military service? Has the amendment ever been interpreted or used in that way?

ajay said,

Thinking of this in historical feudal context I believe the "right to bear arms" was generally limited to the nobility (including lower nobility like knights) and those they authorized to serve them in their armies. So that anyone "bearing arms" without that "right" or a authorization would be committing a crime.

"Historical feudal context" covers about a thousand years of the history of an entire continent, so it's difficult to generalise. But in 1200-1500 England that's certainly not the case; the law actually required men to own longbows and to train with them for two hours every week. (Longbows were great weapons but they need experienced users, partly because they require skill and partly because they require unusual muscular development to the point where you can tell an archer's skeleton from the deformity of the shoulder and back).

Bows were therefore widely owned. Spears too, as hunting tools (for boar, for example). Contemporary wills and inventories show that swords were fairly widely owned as well – though they were more expensive and didn't have a non-military function, so they weren't as common.

There were, however, laws restricting where and when you could carry weapons. Mediaeval England had sumptuary laws; different classes of person were permitted to wear different colours and fabrics, and to carry swords (or not). Inside a city's gates, carrying any weapons except knives openly, or wearing armour, might be illegal.

ajay said,

If "bear arms" were interpreted to mean "to serve as a soldier," wouldn't that imply that the purpose of the 2nd Amendment was to prohibit discrimination against persons seeking to participate in military service?

That's absolutely how it was meant in the 1689 Bill of Rights; it was a reaction to James VII and II disarming the Protestant militia in Ireland and setting up a new standing army which would be open to all religions (and was in fact dominated by James' Catholic co-religionists). As a result, the Bill says, "the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law". And the 2A, like most of the rest of the US Bill of Rights, is virtually a copy and paste of the 1689 Bill.

Chris said,

I think this line of analysis is highly problematic. The method of compiling a dictionary groups together various usages in order to generate a meaning, but this doesn't mean that the meaning then captures all the nuance in each example. It seems obvious that, even if the phrase "bear arms" is always found to mean fighting, the meaning must have developed from the underlying meaning of "carrying arms." And I think we can all agree that when we use phrases like this, we often have meanings mingled in our minds.

By way of example of what I'm talking about, I refer you to the above 1477 sentence: "All they that were of age to bere armes shold be redy on the morn erly for to goo..fighte with their enemyes." The history of military organization suggests that "bear arms" in this case does not mean service as a professional soldier, but as a combatant–it doesn't mean they who were old enough to carry arms, but neither does it mean they who were old enough to join a military unit. It seems to mean something more like they who were old enough to utilitize weapons for combat, which contains both meanings.

Likewise, from 1774: "every male who can bear arms is regimented, and subjected to military discipline." It's pretty clear here that the meaning is that any male who can utilize weapons is regimented, the meaning of "bear arms" encompassing carrying and other activities related to weapons.

When we turn to the Constitution, we find that "arms" is distributed to both "keep" and "bear". Anyone can see that "keep arms" literally means "to have weapons"–arms in this case refers to weapons quite separate from the meaning of "keep"–they are not a idiomatic phrase. The majority of readers, then, seeing this phrase, will understands "arms" to be distributed back to "bear" as well–ie, the phrase is not totally idiomatic but presents to the reader meaning that encompasses multiple related concepts of fighting and properly utilizing weapons, similar to the above usages. Arguably, the chosen structure of "verb and verb noun" also implies that the writer had the same in mind when he wrote it.

I also disagree that a post-Heller reading of the latter definition invalidates all of it for analyzing Heller. The definition may not be applicable (although, as I imply above, the use of a dictionary as a rule rather than a guide is problematic), but the examples certainly are. For example, from 1841: "The right to bear arms, and the right of speech, is an American right." It ought to be possible to find out from context what the author is referring to here, and if it turns out that it means a general right to use weapons, that certainly speaks to understandings of the phrase "bear arms" in periods prior to 1841.

ryan said,

To expand on what Craig said, the problem posed by "keep and bear" goes well beyond the fact that keeping arms would seem to describe something done by individuals. The problem is that to understand "bear arms" as a phrasing with specific meaning, you then have to analyze "to keep" as an intransitive verb that is independent – "the right to keep." Unless you're assuming this is a long forgotten right to have a fortified tower, this verb destroys your analysis of bearing arms.

The Pennsylvania Constitution citation would also seem to make a mockery of your usage. 13 years before the constitution, bearing arms is defined as something one might do to defend oneself. Individualism doesn't get any more rugged than that.

Chris said,

Craig and ryan are addressing one issue I am, but they are doing it better as I don't have the jargon to speak about language properly.

I don't think the issue is as black and white as ryan says. It's possible that a writer or reader of English might interpret "to keep and bear arms" as a clever combination of "to keep arms" (non-idiomatic) and "to bear arms" (idiomatic). However, I think it is more likely that a writer or 18th-century-reader using "to keep and bear arms" has in their mind the whole panoply of meaning associated with "to bear arms," which includes the original meanings of "to carry weapons" down through the meanings of "to be able to utilize weapons" to the meanings of "enlist in military combat." I think writers/readers have all these things in mind when they use a phrase like this.

The real question is not one of linguistic interpretation as much as whether or not a legal right that includes "to fight in the military" can include "subordinate" meanings such as "to utilize weapons for fighting" or must necessarily exclude them. But this is really a legal question rather than a linguistic one.